Is John Roberts the new Anthony Kennedy?

Every four years, I address in this column the need for the U.S. Supreme Court to stay above presidential politics. The Supreme Court can play its role in the balance of powers doctrine only if it remains apolitical. In today's polarized political environment, that's difficult to do. For better or worse, one saving grace is that Supreme Court justices get a lifetime appointment at the top of their profession, so they don't need any more political favors from anyone. As a result, the justices sometimes abandon the ideological position that got them appointed and become the kind of justices they want history to remember them as. For instance, the leader of the liberal Warren Court was a Republican governor appointed by President Dwight D. Eisenhower.

We may be seeing the same syndrome in Chief Justice John Roberts, exemplified by the Court's recent decisions interpreting elusive issues of statutory and constitutional rights. In one case, the Court determined that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and transgender status. In that 6-3 decision, released on June 15, 2020, the Court ruled that Title VII's prohibition against sex discrimination protects gay, lesbian, and transgender employees. Justice Neil Gorsuch, a Trump appointee, wrote the opinion for the majority, joined by Roberts and liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.